Relocation in Virginia Military Custody Cases: Part 1

We’ve talked about relocation cases in Virginia generally, and how difficult it is to “win” a relocation case in Virginia. It comes up all the time, as you can probably imagine, but it comes up especially often in military divorce cases.

When it comes to relocation, the stakes are always particularly high because suddenly custody DOES become a win or lose proposition. Whereas in a normal custody case, where mom and dad live relatively near to each other, custody can be shared on some sort of regular schedule, when a relocation is involved it often becomes increasingly difficult to keep both parents involved to the degree that the court (and the parents) would like.

More and more often, we see the courts relying on the importance of having both parents involved, and that involvement being one of the chief determinants of what, exactly, is in the children’s best interests. It’s less a question of one parent or the other being more important, and more a question of how to keep both parents involved to the greatest degree possible.

When we start talking about a relocation, we start talking about different types of schedules. Instead of week on/week off, 4-3-3-4, or even alternate weekends, we start talking about children spending larger chunks of time (potentially an entire summer or the majority of some of the longer major school holidays) in geographically disparate areas. Though shared custody on a week on/week off schedule is often distasteful, imagining losing an entire summer (or, worse, EVERY summer!) isn’t much more palatable.

But that’s the thing about the military: there’s often not much choice. And we have a pretty large contingent of military families in our area, to say the least, so most family law attorneys – and judges handling family law cases – have a lot of experience with military families and the unique challenges they face, particularly when someone is PCSing. Of course, there’s a difference between a relocation, and how the court treats it, when you’re the military spouse and when you’re the active duty military service member. Let’s first address those differences, and then go into some of the finer points of what happens when a military service member PCSes or even deploys.

When you’re the military spouse

Unfortunately, when you’re the military spouse, you’re not given any more latitude than a non-military person who wants to relocate.

If you have a choice when it comes to the relocation, your decision to relocate will likely be looked at fairly critically. As we’ve already discussed, as far as the court is concerned, one of the most important factors when it comes to deciding on a visitation schedule is the degree to which the children will be able to have a close and continuing relationship with both parents. If you’re moving because of YOUR choice, and it impacts the ability of the children to continue to have a relationship with their other parent, it will be looked at particularly critically by the court.

Can the court tell me that I can’t move?

No, of course not! You’re an adult, and you’re free to move wherever your choose. But, unfortunately, that’s only part of the issue here.

The court CAN tell you that, while you’re free to relocate, you can’t take the children with you. So, for most moms, the practical implication is that the court can pretty much say that you can’t relocate.

What if I move anyway?

That’s where it gets complicated. In general, I think it’s always a good idea to consult with an attorney BEFORE you take any big steps, like going ahead and moving. Regardless of your choice, whether you consult with an attorney or not, and whether you decide to move or stay put, you should know that there can be some pretty unattractive consequences.

Sometimes, it’s easier to ask for forgiveness than permission. If you’ve already relocated before your case comes before the judge the first time, then your relocation won’t be considered a relocation. It’s just the status quo.

If, on the other hand, you ask the court for permission to relocate, the court will often say no.

That’s not always the case, though. Sometimes, trying to go ahead and move can be extremely damaging to your case. Lately, we’ve seen a number of cases where someone moves away, and the other party files emergency petitions with the court. An emergency petition can be heard ex parte (meaning, without you having notice or an opportunity to appear), and the judge can order that you and the children have to return to the Commonwealth. On at least one occasion, I heard of a local juvenile court judge calling a woman and leaving her a voicemail to tell her she had to return!

In these cases, the damage is pretty multi faceted. Of course, there’s the expense and inconvenience of moving that now has to be taken on twice – the move away, and the return. It can be damaging for children, in the sense that they’re being uprooted again, which is probably confusing and a little scary. There’s also the damage to your case, if the judge feels like your move was taken on in bad faith in an attempt to keep dad out of the picture. However justified you may be, it can be hard to overcome that initial bad impression created by the emergency petition.

So, can you just move? Maybe. But it’s probably a good idea to talk to an attorney before you take any drastic action, so that, whatever you decide, you can at least have a plan of action for how to deal with the potential consequences.

What if he PCSes? Do I have to stay here then? Do I have to follow him?

The good thing about being a military wife (or ex wife) is that his orders will likely change before too long – unless, of course, he’s nearing retirement age and plans to stay in Virginia indefinitely.

It’s often better to just bide your time until he gets a permanent change of station, so that you’ll be a little more free.

Generally speaking, you’re stuck in Virginia for as long as he is. But no one can make you move to follow him wherever the military might send him, and no one will make you stay right here once he’s gone.

Of course, where he goes will matter. If he’s getting stationed in Northern Virginia or North Carolina, the judge probably won’t let you relocate to California. But if he’s stationed in Texas or Japan or California, you’ll have a lot more freedom of movement. Either way, though, him moving will allow you a lot more latitude than you’d have otherwise.

It’s never easy to be the military spouse, and it’s even more difficult once you separate – especially if you have children in common and you’d prefer to raise them closer to your own family and support network. Moving them away from their father, though, will likely prove difficult, and that’s something that you should be aware of.

On Friday, we’ll talk about relocation for the military service member, including deployments, and some of the finer points of military relocation cases. In the meantime, if you have any additional questions or need more information, consider requesting a copy of our military divorce book, our custody book, or schedule an appointment with one of our attorneys by calling us at 757-425-5200.